The Atlanta Journal-Constitution
Death-penalty opposition slowly winning debate
Executions become rare events due to dwindling support.
A series of executions in Arkansas has reignited the long-standing battle over the death penalty.
Beginning April 19, the state tried to put eight men to death over 11 days before the drugs it uses in executions expired. After legal challenges, half of the executions were blocked in court.
Yet, despite the high-profile executions in Arkansas — including the first double execution in the nation in nearly 17 years — the use and support of the death penalty in the United States has steeply declined to levels unheard of in decades.
Capital punishment is still legal in most states. But while activists and experts don’t expect it to be banned nationwide anytime soon, they say the momentum against it is strong.
“Practically speaking, the death penalty is in its last days. But like any disease that’s rendered obsolete by modern medicine, it has a few flare-ups before the end,” said Eric Freedman, a law professor at Hofstra University. “The long-term trend toward its extinction is pretty clear and pronounced.”
Here’s why.
Fewer people are being executed by fewer states. The number of executions in the U.S. annually hit a high of 98 in 1999. Last year, the number of people executed was 20. The last time the number was that low was in 1991, when 14 people were put to death.
If all the scheduled executions this year are carried out, 25 Americans will be put to death, according to the Death Penalty Information There have been 1,452 executions in the U.S. since 1976. 100 75 50 25 ’76 ’80 ’85 ’90 ’95 Center. The Washington, D.C.-based nonprofit organization advocates against the death penalty.
Seven states have or are scheduled to carry out executions, according to the center: Texas, Virginia, Missouri, Arkansas, Ohio, Georgia and Alabama.
“It is a phenomenon now of a few counties in a few states,” Freedman said. “The vast majority of the country is living in counties where there hasn’t been an execution for decades.” ’00 ’05 ’10 ’15
Public support is at its lowest level in 40 years. More Americans support the death penalty than oppose it. But surveys over the years show that opposition is increasing and support is declining.
According to the most recent Pew Research Center poll, 49 percent of Americans support the death penalty for people found guilty of murder, and 42 percent of Americans are against it. The gap depends on political party. Only 34 percent of Democrats favor the death penalty, compared with 72 percent of Republicans.
Experts say the decline can be attributed to a variety of factors, including well-publicized cases of people who were sentenced to death and then exonerated.
“When people find out real people are sentenced to death even though they are not guilty, people start struggling to support executions,” said Rob Smith, the Director of Harvard Law School’s Fair Punishment Project, which argued against the Arkansas executions, saying the trials of the men on death row were full of “legal deficiencies.”
Prosecutors are less willing to seek the death penalty — and jurors are less friendly to it. It’s not just that fewer people are being executed. Generally speaking, fewer people are being sentenced to death.
Death sentences hit a high in 1996, when 315 Americans were condemned to die, according to the Death Penalty Information Center. The decline has been steady since. Last year, 30 people were sentenced to death.
“The vast majority of prosecutors these days will never even seek the death penalty,” Smith said. One reason, he said, is that jurors are less likely to be sold on it. Life sentences without parole, Smith said, are seen as a better option.
Some district attorneys and state attorneys general have gone a step further, promising to not push for death sentences. One of them is District Attorney Aramis Ayala of Orlando, Fla., who vowed last month to not seek the death penalty in her cases. Governors of several states, including Washington, Oregon and Colorado, have also imposed moratoriums on the death penalty while they are in office.
Controversial drugs used in executions are in short supply and pharmaceutical companies are taking a stand. The Republican governor of Arkansas, Asa Hutchinson, defended the state’s string of planned executions this month by saying it needed to carry them out before the drugs it uses expire.
“It is uncertain as to whether another drug can be obtained,” Hutchinson said in a statement.
One of the drugs in question is midazolam, a sedative that’s part of a threedrug cocktail the state uses in lethal injections. It has been tied to several faulty executions.
Another drug used in the state is vecuronium bromide, a muscle relaxer. McKesson Corp., a medical supplier that sold the drug to Arkansas, took the state to court over it. The company said Arkansas purchased the drug, which is only intended for medical use, under false pretenses.
The controversy over drugs goes beyond Arkansas and extends to the federal government.
In one example, the Texas prison system filed suit this month against the Food and Drug Administration, which seized 1,000 vials of an execution drug whose importation was banned in 2015. The state purchased the drug, sodium thiopental, from India, and the FDA wants it shipped back or destroyed. The Texas Department of Criminal Justice argues that law enforcement agencies are exempt from the ban.
Major court cases loom as states re-examine policies. Outside of Arkansas and Texas, several other court cases over the death penalty are looming.
In Cincinnati, the U.S. 6th Circuit Court of Appeals is scheduled in June to have the full court consider whether the state’s use of a three-drug cocktail in lethal injections is unconstitutional cruel and unusual punishment. Earlier, a three-judge panel in the appeals court had upheld a stay that kept the state using the procedure in executions.
In California, the Supreme Court is expected to decide this summer on challenges to a voter-approved proposition that reduces the time allowed for appeals of death sentences. The new rule was intended to speed up executions in the state, where there are nearly 750 people on death row. The state is considered a “symbolic” death penalty state because capital punishment is legal but has not been used since 2006.
States are also reconsidering their use of the death penalty.
In Oklahoma, a state commission said last week that a moratorium on the death penalty should be extended until the system for carrying out sentences is changed so that innocent people do not die.